APPEARED AT THE TIME OF ARGUMENTS

O R D E R

PER DR. B.C. GUPTA, MEMBER

            Vijay Saxena deceased, a telecom contractor, purchased a SKODA OCTAVIA car, manufactured by OP-1 Skoda Auto AS, through the dealer, OP-3, ACE Cars, Gurgaon by paying a sum of ₹9,92,920/-.  The deceased used to take contracts in his professional field at different places in the country.   On the fateful day, Vijay Saxena was travelling in the said car bearing registration No. HR51N5674 from Baroda to Jaipur when he met with an accident with a truck bearing registration No. HR29G3037 at about 1 AM on 20.08.2004.  It has been stated that the said truck was being driven rashly and negligently and had overtaken the car from the wrong side and then stopped, which resulted into a serious accident and death of the deceased.  However, his co-passenger sitting next to the driver seat survived the accident.  An FIR No. 204/2004 was got registered by the surviving passenger at Police Station Kishangarh District Ajmer under section 279/337/304 A IPC against the driver of the truck.  The present complaint has been filed by the widow of the deceased as complainant no. 1, two children of the deceased as complainants no. 2 & 3 and mother of the deceased as complainant no. 4.  It has been stated that Vijay Saxena was a young entrepreneur, only 38 years old, at the time of his death and his whole family had suffered great mental and physical agony as well as financial loss, following his death.  It has been alleged in the complaint that at the time of purchase, the representatives of OP-3 had assured the deceased that the car was of a particular standard quality and grade.  However, when the deceased met with the said accident, the safety measures as projected and explained by the representatives of the company were not properly activated on account of manufacturing defect sustained in the safety bag which resulted into bursting of the safety bag.  The death of the deceased was only on account of such defect in the said car.  The complainants made the following prayer in the complaint:-

“(a)      Grant a sum of ₹25,00,000/- (Rs. Twenty Five Lacs only) for mental and physical agony which the entire family including the widow (complainant No. 1), children (complainants No. 2 and 3) and mother (complainant No. 4) have to sustain for the entire life.

(b)        Grant a sum of ₹20,00,000/- (Rs. Twenty Lacs only) towards the loss of love and affection which the complainants will have to sustain for the entire life and have no body else to fulfil the same.

(c)        Grant a sum of ₹ 50,00,000/- (Rs. Fifty Lacs only) as compensation for the loss of life of the deceased looking to the glaring prospect and high achievements and heights which the deceased would have reached in his business ventures.

(d)        Grant the price of the car being ₹ 9,92,920/- since the car purchased from the respondents has been found to be having manufacturing defects. ”

2.         The complaint was resisted by M/s. Skoda Auto A.S. – OP-1 by filing an affidavit in reply, in which they raised the following issues:-

(i)         The vehicles manufactured by the OP are as per international quality standards, with strict quality control norms, well accepted by Auto experts across the world;

(ii)        At the time of accident, the safety features of air bags were properly deployed as clearly shown by the photographs attached by the complainants.

(iii)       The complainants stated in para 11 of the complaint that the safety balloons ‘did not inflate’.  However, in para 13 of the complaint, the complainant stated that due to manufacturing defect, the safety bag had busted.  The stand taken by the complainants was, therefore, contradictory.

(iv)       The accident occurred at 1 AM midnight when the car had been driven by the deceased for almost 12 hours while driving from Baroda to Jaipur.

(v)        It has been stated in the FIR that the accident occurred due to rash and negligent driving of the truck driver, who overtook the car from wrong side and applied the brakes suddenly.

(vi)       The deployment of air bags would depend upon the seriousness of the frontal collusion effective area of the system of the vehicle.  The air bag system is not activated in the event of side collusion, rear collusion, rolling over, minor frontal impact, direction of pollution, driving speed, seat position etc.

3.         The OP-1 stated in his affidavit that complainant had levelled wrong, false, frivolous allegations in his complaint and he was not liable to be given any compensation.

4.         On behalf of OP 2 & 3 also, a combined affidavit was filed in which almost similar points have been taken-up, saying that the car was negligently driven upto 12 long hours and the accident occurred due to wrongful driving of the truck and also wrongful driving of the car because the deceased could not apply brakes within time.

5.         OP-3, M/s. ACE Cars was later on deleted from the array of OPs on an application filed by the complainants saying that OP-3 had left their earlier premises and hence their name be deleted.

6.         Both the parties filed their evidence affidavits narrating almost similar facts as contained in the complaint and replies to the complaint.  In addition, documents were filed by OP-1 explaining the working of air bag system in such vehicles.

7.         At the time of arguments, the learned counsel for the complainants stated that due to manufacturing defect in the vehicle, the air bags did not open, which resulted in the death of the deceased.  He stated that such defects had been reported from time to time in other vehicles as well and in many cases, the manufacturing companies decided to recall the vehicles to remove the defects therein.  The photographs attached with the complaint make it clear that the air bags had only partially opened.  Even the OP-1 had admitted in their reply that the deployment of air bags would depend upon the seriousness of the frontal collusion on the effective area of the vehicle.  The complainants, therefore, are liable to be paid compensation by the OPs as they had lost an important member of their family.

8.         The learned counsel for the OP, however, stated that the vehicle had been driven for more than 12 hours when the accident occurred which implies that the person driving the vehicle was in a tired condition.  The learned counsel further stated that there was one more person sitting on the seat next to the driver who survived the accident, showing clearly that the air bag system of the car had worked.  An FIR had also been filed by the said person, but his testimony has not been brought on record by the complainants for the reasons best known to them.  The learned counsel further stated that the complainants had not produced any expert opinion in support of their version that the car suffered from manufacturing defect.  The learned counsel has drawn our attention to the orders passed by this Commission in the case, “Maruti Udyog Limited vs. Hashmukh Laxmichand & Anr.” as reported in 2009 SCC 74 (NC) and in “Sushila Automobiles vs. Dr. B.M. Prasad & Ors. reported in 2010 SCC 144 (NC)”, saying that it had been clearly stated in these judgments that the onus to prove the manufacturing defect was upon the complainants.

9.         We have examined the entire material on record and given a thoughtful considerations to the arguments advanced before us.

10.       The basic question which arises for consideration in this case is as to whether the Air bags in the said car got deployed at the time of the accident or not and whether the inbuilt security mechanism involving Air bags functioned properly.  The complainants stated at one place in their complaint that the safety balloons ‘did not inflate’ to secure the life of the deceased, whereas at other place, they mentioned that the manufacturing defect in the safety bags resulted into busting of the safety bags.  The case of the OPs is that the Air bag mechanism did function as provided in the car, but it may or may not be sufficient to save the life of a person.  No technical evidence has been produced by the complainant to prove that the said Air bags in the car did not deploy at all when the collision took place.  No technical expert such as an automobile engineer was engaged by the complainants to inspect the car soon after the accident and examined whether the Air bag had actually deployed or not.  In fact, no technical expert was consulted by the complainants at any point of time before filing the complaint.  The orders in cases cited by the OPs, i.e., “Maruti Udyog Limited vs. Hashmukh Laxmichand & Anr.” (supra) and “Sushila Automobiles vs. Dr. B.M. Prasad & Ors. (supra)”, make it very clear that it was the duty of the complainant to produce evidence of manufacturing defect in the car.

11.       In this regard, OP-1 have produced literature on the working of the ‘Air bag System’ as taken from the website www.autoevolution.com, which says as follows:-

“The first stage of the air bag deployment is the accident itself. The collision, be it frontal or lateral, activates an array of sensors in the vehicle, including accelerometers, impact sensors, side pressure sensors, brake pressure sensors, gyroscopes and seat occupancy sensors.

 All these sensors are in intimate connection with the ACU (Air bag Control Unit), the very brain of the air bag system. The unit decides if and how to deploy the air bags. When the ACU detects that the deployment threshold has been reached, it initiates the inflation stage.

Air bag deployment Air bag deployment

As the compressed air system would have been impractical and quite inefficient, engineers came up with an idea quite similar to the working principle of the solid rocket booster. Each air bag incorporates a pyrotechnic device, known as an initiator or electric match, consisting of an electrical conductor cocooned in combustible material. A current pulse heats up the conductor, which in turn ignites the combustible material. This igniter triggers the chemical reaction that actually fills the nylon fabric air bag with gas.

 The large volume of gas then forces the air bag out of the steering wheel and/or dashboard at a speed of up to 200 mph or 322 kph, the whole process taking about 0.04 seconds. Considering that the blink of an eye is approximated at 0.2 seconds, one could say it's quite a speedy process.

 The last stage of the air bag process is the deflation, which occurs almost immediately after the inflation is completed. The gas escapes through special vents, which also prevent the occupants from suffering major impact injuries. Another effect of the deflation is the release of dust-like particles, mostly cornstarch and talcum powder, that are used to lubricate the air bag.”

12.       OP-1 have filed their written submissions before us enclosing therewith certain photographs of the interior of the car which shows the air bags in a deflated condition.  OP-1 have taken the plea in their written submission that the copies of the photographs of the damaged car attached with the complaint itself shows that the air bags are found in a deflated condition, meaning thereby that the air bags did open after the accident but still the deceased could not be saved and died due to injuries caused to him.  A simple glance at the photographs produced by OP-1 and the photographs of the damaged car in question produced by the complainant does indicate a lot of similarity, meaning thereby that the air bag system of the damaged car did function during the accident.  The case of the OPs is that the provision of air bags in the car is one of the inbuilt safety features and it may or may not prove sufficient to save the life of a person during an accident.  The OPs have also taken the plea that the air bags are designed to work best in combination with safety belts and it is necessary to have proper sitting position.  The air bags reduce the chance that the occupant’s upper body or head will strike the vehicle’s interior during a crash.  We do not find any ground to differ with the said averments of the OPs that air bag is one of the safety features inbuilt in the car.  On behalf of the complainants also, information has been collected from the website about the air bags and placed on record.  This information also supports the material made available by the OPs regarding the operation of air bags.  We, therefore, tend to agree with the stand taken by the OPs in their reply to the legal notice sent by the complainants, which, interalia, states as follows:-

“It is to be mentioned that the efficiency of the safety features of the car is dependent on many factors mainly connected to the seriousness of the accident, driving speed, direction of collision, seated position, use of seatbelts etc.  It would be wrongly expected that there is no possibility of any negative consequence or injury in case of negligent or rash driving as well as overall non-adherence to the driving rules, driving over speed limits etc.  The combination of the passive and active safety features (including the function of air bags) is explained in the owner’s manual of the car.  The said manual is supplied at the time of purchasing the car.”

13.       The OPs have further taken the stand that the accompanying person who was seated next to the driver survived the crash, meaning thereby that the air bag mechanism did function during the said collision.  The complainants have not been able to give any reason why they could not provide testimony of the surviving passenger as he would have been in the best position to describe the situation, as happened during the accident.

14.       The complainants have produced information from the website saying that in many cases car manufacturers decided to recall the vehicles due to defective air bags.  However, from the material on record, it has not been proved that the air bags in the vehicle in question were defective and the vehicle suffered from any manufacturing defect.  Even the complainants themselves stated in one para of the complaint that the air bags did not inflate but in a subsequent para, they stated that the air bags had busted.  Had the air bags in the car not functioned at all, it could be imagined that there was some defect in the vehicle but in the present case, the air bags mechanism did function as per the photographs made available by the complainants themselves.

15.       The stand taken by the OPs that the car had already been driven for more than 12 hours because the deceased was driving from Baroda to Jaipur, and the accident occurred at 1:00 am in the midnight leading to the presumption that the deceased was tired at that time.  This version of the OPs has not been controverted by the complainants.

16.       The complainants have themselves stated in their affidavit dated 03.09.2007 submitted before this Commission that the Motor Accidents Claim Tribunal (MACT) had already passed an award dated 28.06.2006 in their favour for a sum of ₹ 41,00,112/- alongwith interest @6% p.a. upto the date of payment.  In the same affidavit, they have stated that they had received an amount of ₹ 44 lacs from the National Insurance Company on 05.02.2007.  An appeal had been filed by them before the Hon’ble High Court for enhancement of the award.  It is made out, therefore, that the complainants have already got compensation in accordance with the statutory provisions governing claims during such accidents.

17.       Based on the discussion and the material on record, it is held therefore, that the complainants have not been able to prove any manufacturing defect in the vehicle for which they may be held entitled for any compensation from the OPs.  The consumer complaint is, therefore, without any merit and the same is ordered to be dismissed.